Balwant Singh and Another vs State

Jia Lal kilam, J.—This is a Revision application submitted by one Sardar Balwant Singh against an order of the Additional District

Magistrate Jammu dated 1st August 1957 whereby the Additional District Magistrate has confirmed in appeal the order of the trial Magistrare

forfeiting an amount of Rs. 1500 which the petitioner, according to the prosecution version, had undertaken to forfeit in case Mohinder Singh

accused for whom the petitioner had stood as a surety made default in making appearance before the trial Magistrate. It appears that the petitioner

had stood surety for Mohinder Singh accused who is standing trial for an offence u/s 457, R.P.C. The allegation against the petitioner is that he had

undertaken to produce Mohinder Singh in Court on every day till the case was finally disposed of. After some time the accused Mohinder Singh

made himself scarce and failed to appear in the trial Court with the result that proceedings u/s 514, Criminal P.C. were taken against his surety,

Balwant Singh. The petitioner appeared in the trial Court to show cause as to why the amount entered in the bail bond should not be forfeited. In

the trial court the petitioner pleaded that be was a poor man and as such unable to pay the amount entered in the bail bond and that he had tried his

level best to trace out the-accused but had failed. This plea of the accused dice not find favour with the trial court, with the result that the trial court

ordered forfeiture of this amount. The petitioner went up in appeal to the learned Additional District Magistrate who rejected his appeal.

Before me the learned Counsel appearing on behalf of the petitioner raised a number of pleas. He started with the submission that the bail

proceedings are special proceedings and the procedure provided by the Code in this behalf must be strictly followed. I have no difficulty in

agreeing with this submission of the learned Counsel. The learned Counsel has also argued that according to law it is necessary that the time and

place at which the accused is to appear must be mentioned in the bond. Referring to the bail bond in question, the learned Counsel has submitted

that all that the bond contains is that the accused shall appear in the Court till the decision of the case. The argument is that this condition is both

vague and uncertain and not such as should entail any penalty upon the surety. It is obvious that the time and place of the Court is not mentioned in

the bond. The learned Counsel has in this behalf referred me to Emperor v. Chintaram AIR 1938 Nag 243 (A) in which it has been laid down:

Bail proceedings are special proceedings about which there are specific provisions in the Code and they must be strictly followed. Section 499

states, that the time and place at which the accused is to appear must be mentioned in the bond and Clause (2), Section 499 says that if the

accused is to appear in some-other court the bond must expressly say to. It is not open to the Court to depart from these provisions.

Where therefore there is no mention in a surety-bond of the Court in which the accused is directed to appear and all that is mentioned is that the

surety undertakes to produce the accused in ""the Court at B till the decision"" it is impossible to enforce a vague and sloverly bond of this character.

As against this, the learned Advocate General argued that though there is some vagueness in the bond with regard to the time and place of the

Court in which the accused was to be produced; yet it cannot be denied on behalf of the surety that he knew where the accused had to present

himself. But this argument has been met by the petitioner's leaned counsel by referring to Anr. passage in the same judgment which runs as follows:

What the surety himself thought about his. liability under the bond is immaterial, for the terms of the surety bond have to be determined by the

language used in the bond itself. Also,' it is not for the surety to show that the bond is illegal, but for the Crown to show that the document, which it

wishes to enforce against him, is one which can be so enforced under the law.

The petitioner's learned Counsel has again referred to Roshan Lal Vs. State, wherein it has been held:

It was imperative, according to Section 499 of the Cr.P.C. that the time and the place had to be-mentioned in the bond and if the place of the

court where the attendance was required was not at all mentioned, that surety bond will be invalid agreement.

The learned Advocate General has referred to Bahar Husain and Others Vs. State, . In this ruling also it has been laid down that ""the terms of a

bail bond have to be strictly construed.

There is yet Anr. point raised by the petitioner's learned Counsel. In the bail bond it is stated that in case the accused makes default in

appearance, then the surety would deposit Rs. l500/-in treasury out of his own pocket. In this behalf the petitioner's learned Counsel has referred

to Form 42 of Schedule V in which the form prescribed is that ""in case the accused makes default in appearance, the surety bind himself to forfeit

to His Highness the Maharaja Bahadur (now Government of Jammu & Kashmir) the sum of...."" He submits that in the bail bond in question all that

the petitioner has stated is that he would deposit Rs. 1500/- in treasury. This, in the submission of the learned Counsel, does not conform to the

form prescribed by law. The mere fact, argues the learned Counsel, that the accused has undertaken to deposit money in treasury without

mentioning which treasury he meant, would not mean that he had undertaken to forfeit Rs. 1500/- to His Highness the Maharaja of Jammu and

Kashmir (now the Government). He has in this behalf referred me to The State of Uttar Pradesh Vs. Mohammed Sayeed, wherein it has been

held:

Where the surety had executed a bond in 1953, u/s 499 Cr.P.C. whereby he was to forfeit to ""the King Emperor Qaiser-e-Hind"" a certain sum of

money if he made default in procuring the attendance of the accused before the Court, and the bond was not one by which he bound himself to

forfeit the said sum either to the Government of the Union of India or that of the State (of Uttar Pradesh) the bond executed was unknown to the

law of the Republic of India under the Code of Criminal Procedure when' it was executed. Section 514 of the Cr.P.C. empowers a Court to forfeit

a bond which has been executed under the provisions of that Code and since the bond executed by the surety was not one under the Cr.P.C.

resort cannot be had to the provisions of Section 514 of the Code to forfeit the same.

Applying the principles adumberated in this authoritative pronouncement, to the facts of this [case, I find that the bail bond executed by the surety,

Balwant Singh, does not fulfil the conditions provided by law. The bond should have contained in specific terms that the surety, in case of failure to

produce the accused, had bound himself to forfeit Rs. 1500/- to the Government of Kashmir. In the bail bond in question the petitioner has not at

all bound himself to forfeit the sum to the Government and all that he has said is that he would deposit the sum in the Treasury. In the Supreme

Court ruling the undertaking was that the surety would forfeit to the King Emperor Qaiser-e-Hind a certain sum of money, while in the observation

of their Lordships of the Supreme Court the binding should have been that the surety would forfeit the said sum to the Union of India. On this one

point the bond was held to be invalid and unenforceable u/s 514, Cr.P.C.

Taking all this into consideration, I find that there is force in this Revision application. I, therefore, accept this Revision application, and set aside

the order of forfeiture passed by the courts below.

There is Anr. Revision application arising out of the same case by Piara Singh who also had stood as a surety for Mohinder Singh accused. This

bond is also invalid and unenforceable for reasons that have been given in the case of Balwantsingh dealt with above. There is yet one more point

in Piara Singh's bail bond, i.e., that no Megistrate's Court was mentioned as one before which the accused Mohinder Singh had to appear. The

case was a criminal one and as such cognizable by a Magistrate, but in the bail bond we find that the accused was produced before a Sub-Judge

Jammu, and it was stated therein that the accused will appear before that Court, i.e., according to the bail bond as it stands now, means the Sub-

Judge's Court. Now a bail bond executed under the Criminal P.C. can have no connection whatsoever with a Sub-Judge who is authorised to deal

with civil matters only. This shows the slip shod manner in which proceedings are taken in the courts below, and the learned Magistrates too do not

seem to be very careful about this. But apart from this, the terms of the bail bond in Piara Singh's case are exactly the same as in Balwant Singh's

dealt with above, and for reasons-discussed therein, I accept Piara Singh's Revision application and set aside the order of forfeiture passed by the

courts below.